International Law Roundup: Part III

In addition to discussing developments at the international criminal tribunals, addressed in Parts I and II of this series, the IHL Dialogs also offered insights into human rights cases moving forward in domestic courts. Some of these cases involve ICC situation countries, reflecting the phenomenon of complementarity. Notwithstanding the Supreme Court’s judgment in Jesner v. Arab Bank, in which the Court ruled that it would be inappropriate to extend Alien Tort Statute (ATS) liability to foreign corporations absent further action from Congress (see our online symposium here), a number of human rights cases continue to move forward in U.S. courts. These cases join dozens of other human rights cases proceeding in foreign courts around the world.

Haiti: A U.S. District Court in Massachusetts recently ruled that torture, murder, and arson claims can proceed against former Haitian mayor Jean Morose Viliena. The plaintiffs are Haitian media activists and human rights defenders who survived a campaign of violence led by Mayor Viliena and his political supporters. Although the ATS crimes against humanity allegations were dismissed on extraterritoriality grounds, claims under the Torture Victims Protection Act (TVPA) and arson claims under Haitian law remain in the case via supplemental jurisdiction. This civil case in the United States is all the more important because a criminal case against Viliena in Haiti involving charges of murder, battery, and property destruction has been stalled. Indeed, Viliena fled to the United States once these criminal charges were filed against him. He became a legal permanent resident and managed to obtain a license to be a school bus driver, a position that presumably requires a background check. The day after the U.S. civil case was filed, plaintiff Nissage Martyr died suddenly in Haiti under mysterious circumstances. Controversially, the results of the autopsy have not been made public. Nissage’s son has been substituted as a plaintiff in the U.S. case.

Syria: A judgment is expected any day in the civil suit against Syria under the Foreign Sovereign Immunity Act, Colvin v. Syrian Arab Republic. (See our coverage here). This case is part of a number of Syrian accountability efforts (note this National Public Radio story) moving forward around the world given that access to the International Criminal Court remains largely blocked. Marie Colvin, the intrepid war correspondent who was assassinated in Syria for her coverage of the war, is featured in a new film, Under the Wire.

With the help of my ace research assistance Rohan Jain, of the West Bengal National University of Juridical Sciences, I have been surveying domestic cases involving the war in Syria that are pending in domestic courts around the world. What we see is that most cases more often take the form of national security prosecutions against nationals who traveled to the front to join an armed group, foreign nationals who managed to slip into the country from the war zone, or nationals who provided forms of material support to others engaged in combat. States are charging various manifestations of terrorism, weapons violations, and membership in a terrorist organization (see, e.g., the Hamza B. case). The Harun P. case in Germany is instructive. The defendant, a German citizen, traveled to Syria in 2013 and joined a militant group with whom he participated in an attack on a prison in Aleppo. After leaving the group, he was arrested in the Czech Republic and extradited to Germany. He eventually cooperated with the authorities and was sentenced to 11 years’ imprisonment.

Fewer states are prosecuting war crimes cases, stricto sensu. Most of these targets for prosecution appear to be members of the rank-and-file rather than individuals in a leadership position. States are building mutual legal support networks and benefiting from the work of documentation groups, such as the Commission on International Justice and Accountability (CIJA).

Liberia: The civil wars in Liberia (1989-2003) are generating a number of domestic cases in U.S. and other foreign courts, even as that country renews a national dialogue about its unfinished transitional justice process. In the United States, cases involving Liberian perpetrators have resulted in steep sentences for individuals charged with immigration offenses (for intentional misstatements on visa applications, for example; see our coverage here). Many of these defendants cannot be charged for the underlying substantive crimes because the acted prior to the enactment of the relevant statute. Their immigration offenses, however, are more recent and are ongoing. For example, a U.S. jury convicted Mohammed Jabbateh (a.k.a. “Jungle Jabbah”) for immigration fraud; he received an unprecedented 30-year sentence. We await sentencing this fall in the related case involving Thomas Woewiyu for his role in Operation Octopus. Woewiyu was convicted of lying during immigration proceedings and could face 110 years’ imprisonment. Operation Octopus—a multi-tentacled offensive launched by Charles Taylor to take Monrovia—led to the death of five humanitarian workers form the United States.

Uganda: As the Dominic Ongwen case unfolds before the ICC, parallel proceedings are slowly underway before a special division of the Ugandan High Court, the International Crimes Division (ICD), against another former LRA member, Thomas Kwoyelo, who has been in Ugandan custody since 2008. His confirmation of charges hearing has been postponed several times, most recently for lack of funds apparently. Kwoleyo unsuccessfully applied for amnesty under a Ugandan law that is meant to encourage LRA members to defect and renounce violence. Like Ongwen, Kwoyelo is also a forcibly-conscripted child soldier turned accused. An example of complementarity in action, the ICD is mandated to try the perpetrators of war crimes and crimes against humanity, including commanders of the LRA and other rebel groups. Proposals for the ICD emerged amidst controversy surrounding Uganda’s self-referral to the ICC.

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About the Author(s)

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own.
Follow her on Twitter (@BethVanSchaack).